Editor’s Note: Fatima Goss Graves is President and CEO of the National Women’s Law Center. The views expressed in this commentary are her own. Read more opinion on CNN.
When Supreme Court Justice Stephen Breyer leaves the bench this summer, he’ll likely be doing so just as the Court releases its ruling on Mississippi’s abortion ban, one that could potentially threaten decades of precedents on abortion that Justice Breyer himself authored. The impact of this potential reversal of Roe v. Wade would be felt by people across the country – particularly Black women, many of whom have led the charge against attempts by state lawmakers to control their bodies, lives and futures.
President Joe Biden said Thursday he’s going to keep his campaign promise of nominating the first Black woman to the Supreme Court. By doing so, he will help correct generations of bias and under-representation that have kept Black women from interpreting the laws whose worst impacts we are most likely to face.
Black women’s impact on the laws of this country is too often unvalued and unheard, whether it’s Ida B. Wells’ crusade against lynching to the foundational civil rights work of Pauli Murray, which was built upon by household names like Thurgood Marshall and Ruth Bader Ginsburg. The last 50 years of law and civil rights activism would have been dramatically different if not for Kimberlé Crenshaw’s pioneering analysis of intersectionality as a lens to understand the dual impacts of racism and sexism, Anita Hill’s ongoing mission for workplace equality and the tireless efforts of Stacey Abrams to defend our democracy.
That outsized impact has not, however, been represented by the legal profession itself. Just a third of lawyers in the country are female, according to the American Bar Association and less than 5% are Black. Only 3% of sitting judges are Black women and a majority of Circuit and District courts have zero women of color. This injustice was worsened by Donald Trump’s administration – of the 53 Appeals Court judges he appointed, not a single one was Black, and up until the Biden administration’s historically-diverse slate of judicial appointments, the Senate went nearly a decade without confirming a Black woman as nominee for the Appeals Circuit.
Far more than a matter of symbolism, the current homogeneity of the legal profession and judicial system is a threat to the integrity of both. On both ends of the legal system, the perspective of White men has been treated as the default, as if they and their life experience somehow endowed them – and only them – with the objectivity and insight needed to interpret – and benefit – from our laws.
Biden’s promise to appoint a Black woman is an effort to break this harmful tradition, bringing not just a diversity of race and gender but also diversity of experience, viewpoint and jurisprudence that will strengthen the Supreme Court as an institution. For every name mentioned in media reports as a likely contender, countless more Black women could be named and elevated to a place in our nation’s judiciary.
Look no further than the fight for abortion to see this impact. Jackson Women’s Health Organization, the only abortion provider in Mississippi at the center of the pending case in which the Court is being asked to overturn the constitutional right to abortion, is largely staffed by and serves Black women. Black women lead the local organizing efforts to ensure the safety of abortion patients in Mississippi and across the South. It is Black women’s liberty and freedom that Mississippi has long sought to control through the barrel of the law.
Black women are among the racial demographic most in need of abortion care in the US and pay the largest socioeconomic and safety costs when denied an abortion. Black women are at least twice as likely to die from pregnancy as their white counterparts, disparities that are demonstrably worse in states that have rolled back abortion access. Despite this disparate impact – and the Black women who organized, wrote legal briefs and litigated in defense of abortion care – when the Supreme Court heard arguments over Mississippi’s abortion ban in December, not a single Black woman’s voice was heard in the very room where their rights and livelihood were being debated.
President Biden’s replacement for Justice Breyer will arrive too late to bring their perspective to that case. But anti-abortion activists did not bring us to this perilous moment by pushing a short-term strategy, and neither can we. We must reject shortsighted cynicism and build the Court we deserve with the opportunities we have for this and future generations.
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Biden’s pick will carry the promise of a Supreme Court that rightly reflects the lives of the people most exposed to the impacts of their rulings while correcting for the erasure and discrimination that continues to harm Black women in the legal profession.
Black womens’ most basic civil rights are facing a renewed assault by an illiberal and radical right, a movement whose attempt to thwart our democracy goes hand-in-glove with the movement to ban abortion, and which views the Supreme Court as a rubber stamp for the harm they want to enact. For the sake of the court and the country itself, President Biden must strengthen the integrity of the judicial system for all people in the country and end the erasure of Black women from the high Court.